Federal Circuit and Family Court of Australia (Division 2 ...

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Federal Circuit and Family Court of Australia

(Division 2) (Family Law) Rules 2021

I, The Honourable William Alstergren, Chief Judge of the Federal Circuit and Family

Court of Australia (Division 2), make the following Rules of Court.

Dated 26 August 2021

The Honourable William Alstergren

Chief Judge of the Federal Circuit and Family Court of Australia (Division 2)

Authorised Version F2021L01205 registered 30/08/2021

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 i

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Contents

Part 1—Preliminary 1 1.01 Name ........................................................................................................................... 1 1.02 Commencement .......................................................................................................... 1 1.03 Authority ..................................................................................................................... 1 1.04 Court may make orders or dispense with these Rules ................................................. 1

Part 2—Application of the Federal Circuit and Family Court of Australia

(Family Law) Rules 2021 2 2.01 Application of the Federal Circuit and Family Court of Australia (Family

Law) Rules 2021 ......................................................................................................... 2 2.02 Modifications of the Federal Circuit and Family Court of Australia (Family

Law) Rules 2021 ......................................................................................................... 2

Part 3—Transferring proceedings 5 3.01 Transfer to Federal Circuit and Family Court (Division 1) ......................................... 5 3.02 Proceeding transferred to Federal Circuit and Family Court (Division 1)—

transfer of documents .................................................................................................. 5

Part 4—Costs 6 4.01 Costs in family law and child support matters ............................................................ 6

Part 5—Delegation 7 5.01 Delegation of additional powers to Senior Judicial Registrars and Judicial

Registrars .................................................................................................................... 7

Schedule 1—Scale of costs in family law and child support

matters 8

Schedule 2—Additional delegated powers 10


Preliminary Part 1

Rule 1.01

Federal Circuit and Family Court of Australia (Division 2) (Family Law)

Rules 2021

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Part 1—Preliminary

1.01 Name

These Rules are the Federal Circuit and Family Court of Australia (Division 2)

(Family Law) Rules 2021.

1.02 Commencement

(1) Each provision of these Rules specified in column 1 of the table commences, or

is taken to have commenced, in accordance with column 2 of the table. Any

other statement in column 2 has effect according to its terms.

Commencement information

Column 1 Column 2 Column 3

Provisions Commencement Date/Details

1. The whole of these

Rules

1 September 2021. 1 September 2021

Note: This table relates only to the provisions of these Rules as originally made. It will not be

amended to deal with any later amendments of these Rules.

(2) Any information in column 3 of the table is not part of these Rules. Information

may be inserted in this column, or information in it may be edited, in any

published version of these Rules.

Note: The Federal Circuit Court Rules 2001, as in force under the Federal Circuit Court of

Australia Act 1999 immediately before 1 September 2021, are repealed as a

consequence of the repeal of the Federal Circuit Court of Australia Act 1999 by

Schedule 3 to the Federal Circuit and Family Court of Australia (Consequential

Amendments and Transitional Provisions) Act 2021.

1.03 Authority

These Rules are made under Chapter 4 of the Federal Circuit and Family Court

of Australia Act 2021.

1.04 Court may make orders or dispense with these Rules

(1) The court may, in the interests of justice, dispense with compliance, or full

compliance, with any of these Rules at any time.

(2) If, in a proceeding, the court gives a direction or makes an order that is

inconsistent with any of these Rules, the direction or order of the court prevails

in that proceeding.


Part 2 Application of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Rule 2.01

2 Federal Circuit and Family Court of Australia (Division 2) (Family Law)

Rules 2021

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Part 2—Application of the Federal Circuit and Family

Court of Australia (Family Law) Rules 2021

2.01 Application of the Federal Circuit and Family Court of Australia (Family

Law) Rules 2021

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021

(other than rules 1.01 to 1.03), as modified in accordance with these Rules, apply

to the exercise of the Court’s jurisdiction in family law or child support

proceedings as if the Federal Circuit and Family Court of Australia (Family

Law) Rules 2021 were provisions of these Rules.

2.02 Modifications of the Federal Circuit and Family Court of Australia (Family

Law) Rules 2021

For the purposes of rule 2.01 of these Rules, the Federal Circuit and Family

Court of Australia (Family Law) Rules 2021 apply as if the modifications in the

following table were made.

Table 2.1—Modifications of the Federal Circuit and Family Court of Australia (Family Law)

Rules 2021

Item Provision Omit (wherever occurring) Substitute

1 Subrule 1.04(1) section 67 section 190

2 Subrule 1.04(1) (note 1) subsection 67(3) subsection 190(3)

3 Subsection 1.04(2)

(note)

subsection 68(1) subsection 191(1)

4 Rule 1.05

(paragraph (a) of the

definition of Judicial

Registrar)

Division 1 Division 2

5 Subrules 1.07(1) and

1.08(1)

Chief Justice Chief Judge

6 Subrule 3.08(2) section 57 section 175

7 Subrule 5.08(2) 25 pages 10 pages

8 Subrule 5.08(3) 10 annexures 5 annexures

9 Rule 9.04 Part 9.2 Part 9.2, or Part 3 of the

Federal Circuit and

Family Court of Australia

(Division 2) (Family Law)

Rules 2021,

10 Paragraph 10.21(1)(a) in the Federal Circuit and Family

Court (Division 1)—under an

arrangement under section 79

in the Federal Circuit and

Family Court

(Division 2)—under an

arrangement under

section 246


Application of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Part 2

Rule 2.02


Rules 2021

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Rules 2021


11 Subrule 10.23(1) section 102QC of the Family Law

Act

section 240 of the Federal

Circuit and Family Court

Act, or section 102QC of

the Family Law Act,

12 Subrule 10.24(1) subsection 102QE(2) of the

Family Law Act

subsection 242(2) of the

Federal Circuit and Family

Court Act, or

subsection 102QE(2) of

the Family Law Act,

13 Rule 14.01 (definition

of Judicial Registrar)


14 Rule 14.01

(paragraph (b) of the

definition of Senior

Judicial Registrar)


15 Subrule 14.02(2) Division 1 Division 2

16 Subrule 14.02(2) subsection 98(1) subsection 254(1)

17 Subrule 14.02(2) Chief Justice Chief Judge

18 Subrule 14.02(2) (note) section 85 section 251

19 Subrules 14.03(1) and

(2)


20 Subrule 15.21(1) Chief Justice Chief Judge

21 Subrule 15.21(1) Division 1 Division 2

22 Rule 15.22 Division 1 Division 2

23 Rule 15.22 Chief Justice Chief Judge

24 Schedule 1, Part 1,

paragraph 1(4)(f)

section 67 section 190

25 Schedule 1, Part 2

paragraph 1(4)(f)

section 67 section 190

26 Schedule 4, clause 2 Division 1 Division 2

27 Schedule 4, clause 2,

table item 2.1

98(2)(q) 254(2)(q)


table items 3.1, 3.2 and

3.3

98(3)(d) 254(3)(d)


table item 5.2

Paragraph 98(2)(p) (qualified by

subsection 98(7))

Paragraph 254(2)(p)

(qualified by

subsection 254(7))


table items 12.1 and

12.2

Paragraph 98(2)(i) and

subsection 98(6)

Paragraph 254(2)(i) and

subsection 254(6)


table item 12.3

Paragraph 98(2)(j) Paragraph 254(2)(j)


Part 2 Application of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Rule 2.02


Rules 2021

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Rules 2021



table item 14.1

Subsection 68(3) Subsection 191(3)


table item 14.2

Section 69 Section 192


table item 14.5

Paragraph 98(2)(k) Paragraph 254(2)(k)


table item 15.1



table item 16.1

Paragraph 98(2)(d) Paragraph 254(2)(d)


table item 16.2

Paragraph 98(2)(e) Paragraph 254(2)(e)


table items 21.2, 21.3

and 21.7

Paragraph 98(2)(n) Paragraph 254(2)(n)


table item 23.5

Subsection 66(2) Subsection 189(2)


table item 23.6

Paragraph 98(2)(h) Paragraph 254(2)(h)


table item 24.2

Paragraph 98(2)(g) Paragraph 254(2)(g)


table item 27.5

Rule 8.04 FCFCOA Rules Subsection 199(2)

FCFCOA Act and

rule 8.04 FCFCOA Rules


table item 27.6

Section 102C FLA Section 201 FCFCOA Act

and section 102C FLA


table item 27.7

Section 102D FLA Section 202 FCFCOA Act

and section 102D FLA


table item 27.8

Section 102E FLA Section 203 FCFCOA Act

and section 102E FLA


table item 27.9

Section 102K FLA Section 204 FCFCOA Act

and section 102K FLA


table items 28.1 and

28.2

Paragraph 98(2)(n) Paragraph 254(2)(n)


table item 28.3

Paragraph 98(2)(o) Paragraph 254(2)(o)


table item 29.3



Transferring proceedings Part 3

Rule 3.01


Rules 2021

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Part 3—Transferring proceedings

3.01 Transfer to Federal Circuit and Family Court (Division 1)

(1) The Federal Circuit and Family Court (Division 2) may, on the application of a

party or on its own initiative, transfer a family law or child support proceeding

pending in the Court to the Federal Circuit and Family Court (Division 1) under

section 149 of the Federal Circuit and Family Court Act.

(2) Unless the Federal Circuit and Family Court (Division 2) otherwise orders, an

application under this rule must be made by application supported by an affidavit

or included in a response supported by an affidavit.

(3) In addition to the factors to which the Federal Circuit and Family Court

(Division 2) must have regard under subsection 149(3) of the Federal Circuit and

Family Court Act in deciding whether to transfer a proceeding to the Federal

Circuit and Family Court (Division 1), the Federal Circuit and Family Court

(Division 2) must have regard to the following matters:

(a) whether the proceeding is likely to involve questions of general

importance, such that it would be desirable for there to be a decision of the

Federal Circuit and Family Court (Division 1) on one or more of the points

in issue;

(b) the financial value of the claim;

(c) the complexity of the facts, legal issues, remedies and procedures involved;

(d) whether the proceeding, if transferred, is likely to be dealt with:

(i) at less cost to the parties; or

(ii) at more convenience to the parties; or

(iii) earlier;

(e) the availability of a judicial officer specialising in the type of proceeding to

which the application relates;

(f) the availability of particular procedures appropriate for the class of

proceeding;

(g) the adequacy of the available facilities, having regard to any disability of a

party or witness, and any safety concerns;

(h) the wishes of the parties.

3.02 Proceeding transferred to Federal Circuit and Family Court (Division 1)—

transfer of documents

If a proceeding is transferred to the Federal Circuit and Family Court

(Division 1), the Registry Manager of the Federal Circuit and Family Court

(Division 2) must:

(a) send to the Registry Manager of the Federal Circuit and Family Court

(Division 1) all documents filed and orders made in the proceeding; and

(b) retain in the Federal Circuit and Family Court (Division 2) a copy of all

orders made in the proceeding.


Part 4 Costs

Rule 4.01


Rules 2021

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Part 4—Costs

4.01 Costs in family law and child support matters

(1) In applying Chapter 12 of the Federal Circuit and Family Court of Australia

(Family Law) Rules 2021 in relation to family law or child support proceedings,

the Court may apply the scale of costs in Schedule 3 to those Rules or the scale

of costs in Schedule 1 to these Rules.

(2) In item 12 of the table in Schedule 1 to these Rules:

(a) the reference to rule 11.15 is a reference to rule 11.15 of the Federal

Circuit and Family Court of Australia (Family Law) Rules 2021 as that

rule applies because of rule 2.01 of these Rules; and

(b) the reference to rule 11.34 is a reference to rule 11.34 of the Federal

Circuit and Family Court of Australia (Family Law) Rules 2021 as that

rule applies because of rule 2.01 of these Rules.


Delegation Part 5

Rule 5.01


Rules 2021

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Part 5—Delegation

5.01 Delegation of additional powers to Senior Judicial Registrars and Judicial

Registrars

Schedule 4 to the Federal Circuit and Family Court of Australia (Family Law)

Rules 2021 applies as if that Schedule included the items in the table in

Schedule 2 to these Rules.


Schedule 1 Scale of costs in family law and child support matters


Rules 2021

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Schedule 1—Scale of costs in family law and child

support matters Note: See rule 4.01.

Scale of costs in family law and child support matters

Item Column 1

Description

Column 2

Amount (including GST)

1 Initiating or opposing an application up to the

completion of the first court date

Both:

(a) $2,357; and

(b) the daily hearing fee specified in item 13

that applies to the hearing

2 Initiating or opposing an application that

includes interim orders (other than procedural

orders) up to the completion of the first court

date

Both:

(a) $2,947 and



3 Initiating or opposing an application for

interlocutory orders (including an interim

hearing) that is not otherwise described in

item 1 or 2

Both:

(a) $1,964; and



4 Procedural or summary hearing-—as a

discrete event

$1,964

5 Conciliation conference (including

preparation)

$1,964

6 Other dispute resolution (including

preparation)

$1,964

7 Preparation for final hearing-—1 day matter $5,022

8 Preparation for final hearing-—2 day matter $6,227

9 Preparation for final hearing-—each

additional hearing day after the second

hearing day

$1,334

10 Attendance at hearing to take judgment and

explain orders

Both:

(a) $321; and



11 Application location, recovery or enforcement

of an order (other than an application for

enforcement by a Registrar under item 12)

Both:

(a) $997; and



12 Application for enforcement by a Registrar

of:

(a) a warrant under rule 11.15; or

(b) a third party debt notice under rule 11.34

$659

13 Daily hearing fee (a) for a short mention-—$321; or


Scale of costs in family law and child support matters Schedule 1


Rules 2021

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Scale of costs in family law and child support matters

Item Column 1

Description

Column 2

Amount (including GST)

(b) for a half day hearing-—$1,178; or

(c) for a full day hearing-—$2,357

14 Advocacy loading 50% of the daily hearing fee specified in

item 13 that applies to the hearing

15 Drafting, conferences and chamber work (not

otherwise covered by other items in the table)

(a) Senior Counsel—$677 per hour;

(b) Junior Counsel—$361 per hour;

(c) Solicitor—$260 per hour

16 Disbursements-—Court fees and other fees

and payments to the extent that they have

been reasonably incurred

The amount of the fees and payments

17 Disbursements-—photocopying for each page $0.81

18 Agents fees and travelling costs

Note: For 2 or more hours travel.

$663


Schedule 2 Additional delegated powers


Rules 2021

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Schedule 2—Additional delegated powers Note: See rule 5.01.

Additional delegations to Senior Judicial Registrars and Judicial Registrars

Item Column 1

Provision

Column 2

Description of power

Column 3

Senior

Judicial

Registrar

Column 4

Judicial

Registrar

14.2A Subsection 174(2)

FCFCOA Act

To give directions about the

practice and procedure to be

followed in relation to a

proceeding or a part of a

proceeding in the Federal

Circuit and Family Court

(Division 2)

14.6A Rule 1.04 of these

Rules

On application, or on own

initiative, to dispense with

compliance with any of these

Rules

27.4A Section 187

FCFCOA Act

but only for a

proceeding that is

being heard by a

Senior Judicial

Registrar or Judicial

Registrar, or with

the consent of the

parties

To give directions about

limiting the time for oral

argument in a proceeding in the


Court (Division 2)

27.4B Section 188

FCFCOA Act

but only for a

proceeding that is

being heard by a

Senior Judicial


Registrar, or with

the consent of the

parties

To give directions about the use

of, or length of, written

submissions in a proceeding in

the Federal Circuit and Family

Court (Division 2)

27.4C Section 197

FCFCOA Act

but only for a

proceeding that is

being heard by a

Senior Judicial


Registrar, or with

To give directions about

limiting the time for giving

testimony in a proceeding in the


Court (Division 2)


Additional delegated powers Schedule 2


Rules 2021

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Additional delegations to Senior Judicial Registrars and Judicial Registrars

Item Column 1

Provision

Column 2

Description of power

Column 3

Senior

Judicial

Registrar

Column 4

Judicial

Registrar

the consent of the

parties

29.2A Section 149

FCFCOA Act

To transfer a proceeding from


Court (Division 2) to the


Court (Division 1)

29.5 Part 3 of these

Rules

To transfer a proceeding from


Court (Division 2) to the


Court (Division 1) and

documents filed in the

proceeding


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